Does Jewish Law Permit Internet Surveillance?Responsa in a Moment: Volume 7, Issue No. 8, June 2013

Since The Washington Post broke the story on June 7th, the media has reported that the NSA (National Security Agency) of the United States has been engaged in massive surveillance of electronic communications via the PRISM program for at least six years in order to locate and apprehend terrorists. This program supposedly includes surveillance of audio, video, photos, emails, and documents found on the servers of nine of the major internet providers (Microsoft, Yahoo, Google, Facebook, PalTalk, AOL, Skype, You Tube, Apple), though spokespeople for these companies deny the reports. There has also been much discussion as to the legality of PRISM vis a vis the FISA (Foreign Intelligence Surveillance Act) of 2008 and the Fourth Amendment of the Constitution. Opponents say that this is a case of the government spying on millions of innocent people without their knowledge, while those in favor say that the motive is to prevent a repeat of 9/11 and that saving lives takes precedence over privacy. What can Jewish law and tradition teach us about this ethical dilemma?

Responsum:

I will not comment on any specific surveillance activities because it is not yet clear exactly what PRISM has been doing. I will also not comment on the legality of these activities because I am not qualified to do so. I will therefore relate only to the last sentence above: what can Jewish law and tradition teach us about the permissibility of widespread electronic surveillance for the purpose of apprehending terrorists and preventing terrorism?

I) Halakhic arguments against internet surveillance

Rabbeinu Gershom Me’or Hagolah (Germany, 960-1028) is the reputed author of a series of Haramot (literally: excommunications) governing various aspects of Jewish life. One of the Haramotfrequently attributed to him says that “One should not read his friend’s letter” and some versions add: “without his knowledge and without his permission”. (See Finkelstein, pp. 31, 178, 189, 195, 201, 211; ET, cols. 452-454, 768; and Schepansky, pp. 95-96 listed in the Bibliography below.) Indeed, until today some observant Jews write abbreviations such as חדר”ג, “Herem d’rabbeinu Gershom“, on the outside of their letters. The original reason for this Herem is not known. Prof. Louis Finkelstein suggested that since letters in medieval times were usually sent through private messengers, the purpose was to prevent the messengers from reading one’s mail (p. 31). Some rabbis say that it is forbidden because of talebearing (Leviticus 19:16) or “love your neighbor as yourself” (ibid. 19:18) or “what is hateful to you do not do unto others” (Shabbat 31a) (see ET, col. 453). One could argue that this Herem applies to email as well (Cohen, p. 101).

Furthermore, there are sources which prohibit the disclosure of confidential information or require the permission of the person in question before that information may be revealed (see Golinkin,Insight, pp. 205-206 and Responsa, pp. 335-336). Proverbs 11:13 says that “A base fellow gives away secrets, but a trustworthy soul keeps a confidence”. The Mishnah (Sanhedrin 3:7) uses this verse, as well as Leviticus 19:16, to teach that judges are not permitted to reveal their deliberations after a verdict is reached, and this ruling was codified by the Rif (Sanhedrin, ed. Vilna, fol. 9a) and by Maimonides (Sanhedrin 22:7).

Finally, we read in the Talmud (Yoma 4b): “How do we know that when a person tells something to his friend, the latter may not repeat it until the person says to him ‘go and say’? As it is written (Leviticus 1:1): ‘And God spoke to [Moses] from the Tent of Meeting to say…’ ”. This source was codified by Rabbi Moses of Coucy (France, ca. 1236, Semag, Negative Commandments, No. 9) and by Rabbi Abraham Gumbiner (Poland, 1637-1683, Magen Avraham to Orah Hayyim 156, middle of subparagraph 2). It means that one may not reveal a confidence without the express permission of the confider. Thus, it appears that Jewish law and tradition would prohibit an internet provider from revealing electronic communications without the express permission of the person in question.

II) Halakhic sources which would allow internet surveillance

On the other hand, unlike a letter which is sealed, it is not clear that electronic communications are actually considered private. There is a halakhic concept of umdena or a common assumption. Rabbi Alfred Cohen suggests that today there is a common assumption that phone calls, emails and text messages are readily accessed by others and the users have tacitly forfeited their right to privacy (Cohen, pp. 120-121).

However, even if the Herem of Rabbeinu Gershom applies to email, Rabbi Yosef Karo has ruled in the Shulhan Arukh (Even Ha’ezer1:10) that the Herem of Rabbeinu Gershom against marrying more than one wife may be overridden when it prevents the husband from performing a mitzvah. Rabbi Moshe Isserles concurs (ibid.): “and the same applies whenever it is a matter of setting aside amitzvah“, though he adds that some say the opposite. Thus, it would seem that both Rabbi Yosef Karo and Rabbi Moshe Isserles would say that we can override the Herem of Rabbeinu Gershom regarding reading someone’s mail or email in order to perform amitzvah.

And what mitzvah would allow the government to read our email? The mitzvah is that of pikuah nefesh or saving a life, which takes precedence over Shabbat (Yoma 85a-b), Kashrut (Mishnah Yoma8:4), Yom Kippur (ibid., 8:5) and almost all the mitzvot in the Torah (Sanhedrin 74a). If pikuah nefesh takes precedence over Biblical commandments, how much the more so does it take precedence over a rabbinic enactment from the Middle Ages! If the NSA could have prevented the death of almost 3,000 innocent people on 9/11 via internet surveillance, wouldn’t most people have been in favor of waiving the Herem of Rabbeinu Gershom and allowing such surveillance?

Thus, as in many cases in Jewish law, there is no simple solution to this dilemma. Privacy is very important but saving lives is even more important. If electronic surveillance saves lives, I believe that Jewish law would sanction such surveillance.

Rabbi David Golinkin, “To Tell or Not To Tell: Confidentiality vs. Disclosure in Jewish Law and Tradition”, Insight Israel: The View from Schechter, Second Series, Jerusalem, 2006, pp. 203-214 (also available online at www.schechter.edu/insightIsrael.aspx?ID=63)